execution with her husband; though if she be in custody on mesne process only, she will be discharged from custody on motion.a The husband may, also, be bound to keep the peace as against his wife ; and for any unreasonable and improper confinement by him, she may be entitled to relief upon habeas corpus.b But as the husband is the guardian of the wife, and bound to protect and maintain her, the law has given him a reasonable superiority and control over her person, and he may even put gentle restraints upon her liberty, if her conduct be such as to require it, unless he renounces that control by articles of separation, or it be taken from him by a qualified divorce. The husband is the best judge of the wants of the family and the means of supplying them, and if he shifts his domicil, the wife is bound to follow him wherever he chooses to go. If a woman marries, pending a suit against her, the plaintiff may proceed to judgment and execution against her alone, without joining the husband ;e but for any cause of action either on contract or for tort, arising during coverture, the husband only can be taken in execution.f These provisions in

a Anon. 3 Wils. Rep. 124. The wife will be discharged from execution in such a case,

if it appears that she has no separate property to pay the debt. Sparks v. Bell, 8 Barnw. of Cress. 1. The application for her discharge has been held to rest in the discretion of the court. Chalk v. Deacon, 6 J. B. Moore's Rep. 128. The husband and wife may be jointly guilty of a tortious conversion of a chattel, and may be sued jointly, provided the conversion be charged to be to the use of the husband. 2 Saund. Rep. 47. note i.

b In the matter of William P. Brown, on habeas corpus, before the cir. cuit judge of the 1st judicial circuit in New York, Feb. 1843, it was ruled that a wife may be kidnapped by the husband within the provisions of the Revised Statutes, vol. 2, 664, and he and his accessories be held to answer for the crime

· Bridgman, Ch. J., in Manby v. Scott, Bridg. Rep. 233. Rex v. Mead, 1 Burr. Rep. 542. Lister's case, 8 Mud. Rep. 22.

a Christian v. Her Husband, 17 Martin's Louis. Rep. 60.

· Doyley v. White, Cro. Jac. 323. Cooper v. Hunchin, 4 East's Rep.

1 Anon. Cro. C. 813. 3 Blacks. Com. 414.

favour of the wife are becoming of less consequence with us every year, inasmuch as imprisonment for debt is un

dergoing constant relaxation; and by statute in *182 *several of the states, no female can be imprisoned

upon any execution for debt.a I trust I need not apologize for having dwelt so long upon the consideration of this most interesting of the domestic relations. The law concerning husband and wife has always made a very prominent and extensive article in the codes of civilized nations. It occupies a large title in the English equity jurisprudence. So extensive have become the trusts growing out of marriage settlements, that a lawyer of very great experience,b considered that half the property of England was vested in nominal owners, and it had become difficult to ascertain whether third persons were safe in dealing for fiduciary property with the trustee, without the concurrence of the beneficial owner. There are no regulations on any other branch of the law, which affect so many minute interests, and interfere so deeply with the prosperity, the honour, and happiness of private life. As evidence of the immense importance which in every age has been attached to this subject, we may refer to the Roman law, where this title occupies two entire books of the Pandects, and the better part of the fifth book of the code. Among the modern civilians, Dr. Taylor devotes upwards of one sixth part of his whole work on the Elements of the Civil Law, to the article of marriage; and Heineccius, in his voluminous works, pours a flood of various and profound learning on the subject of the conjugal relations.d Pothier, who has examined, in thirty-one volumes, the

· See infra, p. 399. n. b.
b Mr. Butler.
c Lib. 23 and 24.

a Vide Opera Heinecc. tom. ii. De marito Tutore et Curatore Uroris legitimo, and tom. vii. Commentarius ad legem Juliam et Papiam Popреат. .

whole immense subject of the municipal law of France, which has its foundations principally laid upon the civil law, devotes six entire volumes to the law of the matrimonial state. When we reflect on the labours of those great masters in jurisprudence, and compare them with what is here written, a consciousness arises of the great imperfection of this humble view of the subject; and I console myself with the hope, that I may have been able to point out at least the paths of inquiry to the student and to stimulate his *exertions to become *183. better acquainted with this very comprehensive and most interesting head of domestic polity.

There is a marked difference between the provisions of the common law and the civil law, in respect to the rights of property belonging to the matrimonial parties. Our law concerning marriage settlements appears, to us at least, to be quite simple and easy to be digested, when compared with the complicated regulations of the community or partnership system between husband and wife, which prevails in many parts of Europe, as France, Spain, and Holland, and also in the state of Louisiana. This system was carried by the colonists of those European powers into their colonies, such as Ceylon, Mauritius, the Cape of Good Hope, Guiana, Demerara, Canada and Louisiana. Many of the regulations concerning the matrimonial union, though not the community system, are founded on the Roman law, which Van Leeuwen, in his Commentaries, terms the common law of nations. I do

• In Louisiana, according to their new Civil Code, as amended and promulgated in 1824. (Art. 2312, 2369, 2370,) the partnership, or community of acquets or gains (communauté des biens) arising during coverture, exists by law in every marriage contracted in the state, where there is no stipulation to the contrary. This was a legal consequence of marriage, under the Spanish law. The doctrine of the community of acquets and gains was unknown to the Roman law, but it is common to the greater number of the European nations, and is supposed to have taken its rise with the Germans, and may be founded on the presumption that the wife, by her industry and care, contributes, equally with the husband, to the acquisition of property.

not allude to the earlier laws of the Roman republic, by which the husband was invested with the plenitude of

All the property left at the death of either party, is presumed to constitute the community of acquets and gains, and this presumption stands good until destroyed by proof to the contrary. Touillier's Droit Civil Francais, tom. xii. art. 72. 17 Martin's Louis. Rep. 258. Christy Dig. tit. Marriage. Cole's Wife v. His Heirs, 19 Martin's Rep. 41. But the parties may modify or limit this partnership, or agree that it shall not exist. They may regulate their matrimonial agreements as they please, provided the regulations be not contrary to good morals, and be conformable to certain prescribed modifications. (Art. 2305.) Parties can, by an express matrimonial contract, subject themselves to the communio bonorum as to per. sonal property, or adopt the law of any country in respect thereof, and the courts will give effect to it unless prohibited by a positive law, either of the matrimonial domicil, or of the locus rei sita. Vide infra, p. 459, and note b. Ibid. In the case of married persons removing into the state from another state, or from foreign countries, their subsequently acquired property is subjected to the community of acquets. (Art. 2370.) This very point was decided at New-Orleans, in Gale v. Davis, 4 Martin's Rep. 645, and in the case of Saul v. His Creditors, 17 Martin's Rep. 569. The supreme court of Louisiana, in the able opinion pronounced by Judge Porter, on behalf of the court in the latter case, held, that though the marriage was contracted in a state governed by the English common law, yet if the par. ties removed into Louisiana, and there acquired property, such property, on the dissolution of the marriage in that state, by the death of the wife, would be regulated by the law of Louisiana. Consequently, a community of acquets and gains did exist between the married parties, from the time of their removal into the state, and the property they acquired after their removal, became common, and was to be equally divided between them, on the principles of partnership. The decision was founded on an ancient Spanish statute, in the Partidas, which governed at New Orleans when it was a Spanish colony; and it is also the law of the Civil Code of Louisiana, as already montioned. So property acquired before the removal from the matrimonial domicil is governed by the law of that domicil, and if mar. ried persons move out of the country where the community of acquets and gains exists, into one where it does not, their future acquisitions are govern. ed by the law of their new domicil. Porter, J., 4 Miller's Louisiana Rep. 193. McColum v. Smith, 1 Meig's Tenn. R. 312. Kneeland v. Ensley, ibid. 620. The principles declared in the case of Saul v. His Creditors are essentially re-declared in the case of Packwood v. Packwood, 9 Robinson's Louis. Rep. 438--12. 16. 234. The community of acquets and gains applies to all the property real and personal acquired while the parties were domiciled in Louisiana, though not to property previously acquired during their matrimonial domicil in another state, nor to property subsequently ac

paternal power of life and death over the *wife, but to the civil law in the more polished ages of the Roman juris

quired after a change of domicil from Louisiana to another state. Saul v. His Creditors, supra. This was the doctrine in the Partidas, but it seems according to the jurists in France and Holland, that the community principle prevails and follows the property even subsequently acquired after a change of domicil, on the ground of a tacit or implied contract having the effect of an actual marriage settlement. While it was admitted in the case of Saul v. His Creditors, that by the comity or nations, contracts were to be enforced according to the principles of law which governed the contract in the place where it was made, yet it was equally part of the rule, that a positive law, regulating property in the place where it was situated, and which the European continental jurists call real statutes, in contradistinction to those personal statutes which follow and govern the individual wherever he goes, must prevail when opposed to the lex loci contractus. The right of sovereignty settles the point, whenever the rules of the place of the contract, and of the place of its execution conflict. The comity of nations must yield to the authority of positive legislation ; and it was admitted, that, independent of that authority, the weight of the opinion of civilians in France and Holland was, that the law of the place where the marriage was contracted ought to be the guide, and not that of the place where it was dissolved. The property of married persons is divided into separate property, being that which either party brings in marriage, or sub. sequently acquires by inheritance or gift, and common property, being that acquired in any other way by the husband and wife during marriage. (Art. 2314.) The community of acquets and gains ceases on the death of either party, and the survivor takes only his or her undivided moiety of the common property. Cooney's Heirs v. Clark, 7 Louisiana Rep. 156. Brous. sard v. Bernard, id. 216. Stewart v. Pickard, 10 Robinson's Lousi. Rep. 18. The surviving wife cannot renounce the community of gains, if she takes an active part in the community of gains, but in that case she is only responsible for one half of the debts contracted during the marriage. Code Civil, art. 2982, 2378. Lynch v. Benton, 12 Robinson's Louisi. Rep. 113. The separate property of the wife is divided into dotal, being that which she brings to the husband to assist in the marriage establishment, and ex. tra-dotal, or paraphernal property, being that which forms no part of the dowry. (Art. 2315.) The husband is the head and master, and the proceeds of the dowry belong to the husband during the marriage, and he has the administration of the partnership or community of profits of the matrimonial property, and he may dispose of the revenues which they produce, and alienate them, without the consent of the wife. But he cannot convey the common estate, or the acquets and gains, to the injury of the wife during coverture, and she may, at his decease, by action, set aside the alienation. The wife has a tacit mortgage for her dotal and paraphernal

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